Digital privacy?

At about 11 a.m. Monday, the Supreme Court will hear one hour of oral argument in City of Ontario, et al., v. Quon, et al. (08-1332). Arguing for the California city and its police department will be Kent L. Richland of Greines, Martin, Stein & Richland in Los Angeles. The federal government, represented by Deputy Solicitor General Neal K. Katyal, will have 10 minutes as amicus urging reversal of the Ninth Circuit Court decision. Representing four individuals who sued the city will be Dieter C. Dammeier of Lackie, Dammeier & McGill in Upland, CA.

The ubiquitous personal electronic device — pager, cellphone, “smart phone,” PDA — is emerging as a centerpiece in Digital Age legal controversy, including constitutional disputes when a government agency gets involved in regulating the use of these convenient computer-assisted, hand-held items. The Supreme Court has taken on a case to lay down some basic constitutional ground rules on when the users of those devices — at least in government workplaces — can claim a right of privacy, and sue to enforce the right

We live in a digital age and the police and prosecutors are taking the broadest approach possible to gain access to digital communications. As we move away from a paper based society, where you could expect some privacy from government’s prying eyes, the government’s attitude is that communication in the “clouds” waives all expectations of privacy. The only restrictions, and none enforceable by suppression motion in a criminal case, are those imposed by statutes such as the, ancient, ECPA, and the Stored Communications Act.

SCOTUSBlog has an excellent summary of the case.

Monday the Supreme Court will hear oral argument in City of Ontario v. Quon, No. 08-1332. (Linked to SCOTUSWiki).

Issues: (1) Whether a SWAT team member has a reasonable expectation of privacy in text messages transmitted on his SWAT pager, where the police department has an official no-privacy policy but a non-policymaking lieutenant announced an informal policy of allowing some personal use of the pagers; (2) Whether individuals who send text messages to a SWAT team member’s SWAT pager have a reasonable expectation that their messages will be free from review by the recipient’s government employer.

The petition tests whether there is a constitutionally-based right of privacy in text messages for employees of a government agency and, if there is such a right, whether it is less extensive for city employees using government-owned electronic pagers.

The case involved the city’s review of text messages that a member of a police SWAT, or emergency response, team had sent to another officer with whom he was having a romantic affair, and also messages he had sent to his wife. The Supreme Court’s final decision in the case is expected to amplify or modify a 1987 decision, O’Connor v. Ortega, recognizing some workplace privacy for public employees, but counseling that courts should take into account the “operational realties of the workplace.” Although the Court agreed to hear the city’s petition, it denied review of a separate appeal by the provider of the city’s pager service, seeking to test the scope of the federal Stored Communications Act as it applied to disclosure of the context of text messages (USA Mobility Wireless v. Quon, et al., 08-1472).

O’Connor is a workplace search case and the scope of a reasonable expectation of privacy at work. Here’s some headnote law:

Searches and seizures by government employers or supervisors of the private property of their employees are subject to Fourth Amendment restraints. An expectation of privacy in one’s place of work is based upon societal expectations that have deep roots in the history of the Amendment. However, the operational realities of the workplace may make some public employees’ expectations of privacy unreasonable [480 U.S. 709, 710] when an intrusion is by a supervisor rather than a law enforcement official. Some government offices may be so open to fellow employees or the public that no expectation of privacy is reasonable. Given the great variety of work environments in the public sector, the question whether an employee has a reasonable expectation of privacy must be addressed on a case-by-case basis. Because the record does not reveal the extent to which hospital officials may have had work-related reasons to enter respondent’s office, the Court of Appeals should have remanded the matter to the District Court for its further determination. However, a majority of this Court agrees with the determination of the Court of Appeals that respondent had a reasonable expectation of privacy in his office. Regardless of any expectation of privacy in the office itself, the undisputed evidence supports the conclusion that respondent had a reasonable expectation of privacy at least in his desk and file cabinets. Pp. 714-719.

In determining the appropriate standard for a search conducted by a public employer in areas in which an employee has a reasonable expectation of privacy, what is a reasonable search depends on the context within which the search takes place, and requires balancing the employee’s legitimate expectation of privacy against the government’s need for supervision, control, and the efficient operation of the workplace. Requiring an employer to obtain a warrant whenever the employer wishes to enter an employee’s office, desk, or file cabinets for a work-related purpose would seriously disrupt the routine conduct of business and would be unreasonable. Moreover, requiring a probable cause standard for searches of the type at issue here would impose intolerable burdens on public employers. Their intrusions on the constitutionally protected privacy interests of government employees for noninvestigatory, work-related purposes, as well as for investigations of work-related misconduct, should be judged by the standard of reasonableness under all the circumstances. Under this standard, both the inception and the scope of the intrusion must be reasonable.

CAAF has already developed some approaches to cloud communications. It will be interesting to see whether the Roberts’ court upholds privacy protections or a no-hands-holds-or scanner barred approach to modern day communications.